Civil Procedure exam questions from Michael Steven Green's course at William and Mary, with occasional posts on other teaching and research

01/28/2013

Erieblogging: Day Twenty-Eight

Today’s Erie question is about “countervailingfederalinterests.” Assume that a procedural matter faced by a federal court
sitting in diversity is not covered by federal enacted law (that is, a federal
statute or a Fed. R. Civ. P). That puts us in “relatively unguided Erie”
territory. Assume as well that the relevant state supreme court would not say
that a state rule on the matter follows the state law cause of action upon
which the plaintiff sues into federal court. That gets us out of Byrd’s “bound up” test. If so, whether
the federal court should use a uniform federal common law rule or borrow the
rule that would be used by a forum state court comes down to two sets of considerations –
the twin aims of Erie (which argue
for borrowing) and countervailing federal interests in
favor of using a uniform federal common law rule.

My students usually have pretty
good idea how to apply the twin aims (or at least the forum
shopping part) and sometimes even have intuitions about whether a rule is bound
up with the cause of action.
What they have the most difficulty with is identifying countervailing federal
interests. Consider whether a federal court can apply a uniform federal common
law time limit to state law actions – maybe a flexible approach like laches
(which was what was at issue in Guaranty Trust v. York). There would obviously
be vertical forum shopping as a result. But why aren’t there countervailing
federal interests in favor of the flexible federal rule? No one, to my
knowledge, has a good theory about why not.

With an expansive view of countervailing federal interests, the twin aims are toothless. There needs to be some restriction on identifying such interests. The restriction cannot be that
countervailing federal interests must be grounded in federal enacted law. Granted,
such an approach would make some sense. The twin aims are apparently a congressional
restriction on federal courts’ power over federal procedural common law in diversity cases. This restriction
arguably can be lifted only by another congressional command. The problem is
that federal courts commonly find countervailing federal interests without pegging them to federal enacted law.

Countervailing federal interests are, in short, a mystery, but probably no
more mysterious than the idea of restrictions on federal common law in general.

Wim Wenders, Himmel über BerlinI'm a sucker for this movie, mostly because it reminds me of Berlin in the late 80s. The Peter Falk stuff can get tiresome. At 11:50, you can see the Cinema Paris on the Ku'damm, which is where I first saw the movie. I remember at the time that it was an odd experience to see in a movie the very place where I was watching the movie. One of my favorite scenes is at 1:33:00